The End of History? Reflections on Some International Legal Theses

Susan Marks* Democracy used to be a word that international legal commentators preferred to avoid. At least by the second half of the present century, this was not because too few governments identified themselves as democratic. It was rather because too many did so. The world's most repressive regimes joined their more representative counterparts in claiming a title that had become synonymous with praiseworthy and justified politics. In some cases modifying adjectives were used ('one-party democracy', 'people's democracy', etc.); in other cases the appropriation was unmodified. Either way, observers found normative inferences difficult to draw, for democracy appeared to mean everything, and therefore nothing. What put an end to the commentators' reticence was, of course, the demise of communism and the turn in all regions of the world to multi-party electoral politics. For many, these events confirmed both that democracy was the foundation of political legitimacy, and that repressive regimes, whatever they chose to call themselves, lacked that legitimacy. Influential international legal scholars felt able to declare that a 'right of democratic governance' was now 'emerging',1 and that international law was, or at any rate should now be, beginning to take in the lessons of 'liberal internationalism'.^ * 1 2 Fellow, Emmanuel College, Cambridge, CB2 3AP, United Kingdom. I would like to thank Professor James Crawford for his invaluable assistance and support in the writing of the PhD dissertation on which this article draws. The leading exponent of this is Thomas Franck. See, esp., 'United Nations Based Prospects for a New Global Order', 22 NYUJ. Int'l L. & Pol (1990) 601; The Emerging Right to Democratic Governance', 86 AJIL (1992) 46 (hereinafter Franck 1992); 'Democracy as a Human Right', in L. Henkin and J. Hargrove (ed*.). Human Rights: An Agenda for the Next Century (1994) 73 (hereinafter Franck 1994); and Fairness in International Law and Institutions (1995) (hereinafter Franck 1995), Ch. 4 (largely reproducing Franck 1992). See esp. Slaughter (Barley), 'Revolution of the Spirit', 3 Han. Hum. Rts J. (1990) 1 (hereinafter Slaughter 1990); Towards an Age of Uberal Nations', 33 Han. Int'l LJ. (1992) 393 (hereinafter Slaughter 1992a); 'Law Among liberal States: Liberal Internationalism and the Act of State Doctrine', 92 Columbia LR. (1992) 1907 (hereinafter Slaughter 1992b); 'Law and the Uberal Paradigm in International Relations Theory', Proc. ASIL (1993) 180 (hereinafter Slaughter 1993); and 'International Law in a World of Liberal States', 6 EJIL (1995) 303 (hereinafter Slaughter 1995). For a related theme, see Teson, The Kantian Theory of International Law', 92 Columbia LR. (1992) 53 (hereinafter Teson 1992). 3 EJIL (1997) 449-477 The End of History? Reflections on Some International Legal Theses Susan Marks The previous paragraph's proviso is, however, a very large one, and points to the central question addressed in this article. What is the understanding of democracy that informs the claims concerning the right of democratic governance and liberal internationalism? The argument advanced here is that the international legal scholars who put forward these claims precisely do not identify democracy with a concept or ideal of self-rule on a footing of equality among citizens. Rather, they, along with many of their critics, for the most part elide democracy with certain liberal institutions. This serves, in ways to be highlighted to attenuate the emancipatory and critical force that democracy might have. In doing so, it limits the contribution that international law (should it develop along the lines the scholars suggest) might make with respect to anti-authoritarian politics, whether in countries yet to embrace democracy, in countries newly embracing democracy, in countries of long-standing democratic commitment, or indeed in the innumerable other non-national settings of contemporary political life. The elision of democracy with certain liberal institutions can be linked to a more general perspective evinced in the claims concerning the norm of democratic governance and liberal internationalism. This perspective will be referred to as 'liberal millenarianism' (an expression which hopefully makes up in salience for what it 3 4 450 For elaboration of these claim*, tee alto Fox, The Right to Political Participation in International Law1. 17 Yale Int'l LJ. (1992) 539; Fox and Nolte, 'Intolerant Democracies', 36 Harv. lnt'l LJ. (1993) 1; and Cema, 'Universal Democracy: An International Legal Right or a Pipe Dream of the West?', 27 N.Y.U. J. Int'l L & PoL (1995) 289. For arguments refuting the claims, tee Carothers, 'Empirical Perspectives on the Emerging Norm of Democratic Governance', Proc. ASIL (1992) 261; Koskenniend, '"Intolerant Democracies": A Reaction', 37 Harv. Int'l L. J. (1996) 231; and Roth, 'Democratic Intolerance: Observations on Fox and Nohe', 37 Harv. Int'l LJ. (1996) 233. For discussion of the claims, see Panel 'National Sovereignty Revisited: Perspectives on the Emerging Norm of Democracy in International Law', Proc. ASIL (1992) 249-71. Amongst the vast literature on the subject of democracy, D. Held, Models of Democracy (2nd ed, 1996) and J. Dunn (ed.). Democracy: The Unfinished Journey 508 BC to AD 1993 (1992) provide exceptionally valuable overviews of the roots and vicissitudes of this ideal. In evoking the ideal, this article seeks not to define democracy (the contestability of which resists definition), but rather to associate itself with a venerable and powerful strand of democratic thought. For an exemplary distillation of that strand, see Beetham, 'Key Principles and Indices for a Democratic Audit', in D. Beetham (ed.). Defining and Measuring Democracy (1994) 23. This article examines these claims.3 The concern here is not to affirm or deny that state practice and opimo juris square with an emerging right of democratic governance. The evidence relevant to deciding that doctrinal question will not be presented, and no conclusion will be offered with respect to it Nor does this article seek to maintain that democracy is a Western artefact, with limited relevance outside the West On the contrary, the premise of what follows is that, provided it is understood to refer to a general concept or ideal of self-rule on a footing of equality among citizens,4 rather than to particular conceptions of democratic politics and their institutional manifestations, democracy is an idea of potentially universal pertinence. Its historical roots may be localized But the worldwide struggles being waged in democracy's name leave little room for doubt that democracy has today become globalized The End of History? Reflections on Some International Legal Theses L Liberal Millenariaiilsiii Liberal millenarianism finds its most extreme, and certainly its best known, expression in the work of Francis Fukuyama in the late 1980s and early 1990s.5 Fukuyama (...truncated)